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How Price-Fixing and Collusion Can Save the Newspaper Industry—And Why Congress Should Promote It Brad A

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How Price-Fixing and Collusion Can Save the Newspaper Industry—And Why Congress Should Promote It Brad A The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry—and Why Congress Should Promote It Brad A. Greenberg UCLA LAW REVIEW UCLA LAW ABSTRACT Newspaper executives have been struggling for the past decade to slow the sharp and unprecedented decline of their industry. While no effort has worked, one promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industry-wide agreement, and such an agreement would be a per se violation of U.S. antitrust law. Unlike in other areas of the law, antitrust law does not permit courts to make policy judgments and approve of “good” agreements to restrain trade or fix prices, even when such a move would further antitrust policy interests. Exemptions can only come from Congress. This Comment argues that, because of the newspaper industry’s vital role in generating new information that supports American democratic society, Congress should pass a narrow and temporary exemption from the collusion and price-fixing prohibition in Section 1 of the Sherman Act. Such an exemption would allow newspaper executives to work together on a sustainable online business model for the press, thereby preserving the American corps of professional newsgatherers. That, in turn, would stabilize contributions to the marketplace of information and ideas and would slow the consolidation and concentration of newspaper ownership. Both of these outcomes would advance a primary goal of antitrust law—increase in consumer options. AUTHOR Brad A. Greenberg is Editor-in-Chief of UCLA Entertainment Law Review, vol. 19, and J.D. Candidate, 2012, at UCLA School of Law. Special thanks to Professor Neil Netanel and to my former newspaper colleague and classmate Dan Laidman for their invaluable feedback; to the editorial board of the UCLA Law Review, particularly Anya Goldstein and Julius Nam, for their skill in refining this Comment; and to every friend who indulged my interest in talking about the future of journalism. I am especially indebted to my wife, Kate, and my parents for their unwavering support throughout law school, for always encouraging me to write, and for everything else that matters. 59 UCLA L. REV. 414 (2011) TABLE OF CONTENTS Introduction ............................................................................................................416 I. Newspapers’ Downward Spiral ....................................................................418 A. The Press’s Problem ..................................................................................420 B. How an Industry-Wide Paywall Would Help .........................................424 C. An Antitrust Exemption to Overcome the Press’s Coordination Problem ..............................................................................428 II. Public Policy and the Press ........................................................................430 A. Old Media vs. New Media .......................................................................434 1. The End of Professional Newsgathering? .......................................436 2. Newspaper Ownership Consolidation and Contraction .................439 B. Precedent for Congressional Intervention ................................................442 1. The Post Office Act of 1792 ............................................................442 2. Twentieth-Century Efforts to Strengthen Media ...........................443 C. Congress Should Act to Support Old Media Anew ................................444 III. Antitrust Law and the Newspaper Industry ..........................................446 A. Sherman Act Restricts All U.S. Businesses Lacking an Exemption ........447 B. Antitrust Exemptions Are Pervasive ........................................................450 1. Narrow Exemptions From the Price-Fixing and Collusion Prohibition ...............................................................451 2. Broad Exemptions for the Failing Newspaper in a Two-Newspaper Town .............................................................452 IV. A New Exemption ..........................................................................................457 A. An Explicit, Narrow, and Temporary Exemption .....................................458 B. The Exemption Would Serve Stated Policy Interests ..............................461 Conclusion ...............................................................................................................465 415 416 59 UCLA L. REV. 414 (2011) INTRODUCTION The newspaper industry is in an unprecedented period of decline.1 Newspaper executives have tried various measures to offset falling print publi- cation revenue, but the only effective approach has been to repeatedly cut staff and reduce product quality.2 Meanwhile, advertisers and readers have defected to the internet—and it appears unlikely that they will be returning to print.3 While online news sites are appropriately reaping the benefits of their innova- tion, the demise of the newspaper industry portends problems for American democratic society.4 Newspapers continue to be central in setting the agenda for public discourse, in connecting individuals with their community, and in serving as a watchdog on elected officials, business leaders, and any other misbehaving person in a position of power.5 It is not clear that online media6 can bear that burden—at least not to the same degree. For the sake of protecting the national corps of professional newsgatherers that are employed by newspapers, 1. It is difficult to overstate this point. See infra Part I. The press is undergoing a seismic shift, thanks primarily to the digital revolution and changes in individual news consumption patterns. Ad revenue and circulation have plummeted, while printing and delivery costs have risen. Newspapers have responded by dramatically reducing staff, consolidating with competitors, and filing for bankruptcy. Some have decided to stop the presses permanently. 2. See Mathew Ingram, Newspaper Staff Cuts: Good News?, NIEMAN JOURNALISM LAB (Feb. 2, 2009, 5:39 PM), http://www.niemanlab.org/2009/02/newspaper-staff-cuts-good-news (arguing that newspaper executives are making misguided cuts without a realistic plan for future success and that “many newspapers are cutting in arguably the wrong places”). Between January 2008 and November 2010, at least 33,658 newspaper jobs were cut. See Looking Back: 2009 Newspaper Layoffs, PAPER CUTS (Jan. 1, 2010), http://newspaperlayoffs.com/2010/01/looking-back-2009- newspaper-layoffs. For a running tally of newspaper layoffs, see also PAPER CUTS, http://paper cuts.graphicdesignr.net (last visited Oct. 6, 2011). 3. See Bradley Johnson, Revenue Rising, and a New No. 2 Ad Medium: Internet, ADVERTISING AGE, Dec. 20, 2010, http://adage.com/article/news/advertising-internet-2-ad-medium/147740 (reporting that in 2010, online media surpassed newspapers in ad revenue); see also infra notes 28– 30; infra Part I.A. 4. Newspapers play an integral role in filling the ranks of the professional corps of newsgatherers. See infra Part II. This cadre of professional newsgatherers has helped the press influence pol- itics and act as an agent of accountability outside of formal governmental institutions, making the press the archetypical Fourth Estate. See Matthew Gentzkow et al., The Rise of the Fourth Estate: How Newspapers Became Informative and Why It Mattered (Nat’l Bureau of Econ. Research, Working Paper No. 10,791, 2004), available at http://www.nber.org/papers/w10791. This idea of a Fourth Estate might be overly romantic, but professional newsgatherers significantly reduce the cost of monitoring elected officials and educate citizens about their community. 5. See infra notes 155–157. 6. For the purposes of this Comment, “online media,” the newest new media, is an all-inclusive phrase used to refer to everything from online-only news organizations to blogs to social networks to citizen journalists. THE NEWS DEAL 417 thereby preserving the primary source of new information that is crucial to democratic self-governance, the federal government should intervene to help the newspaper industry. Charging for online content is a promising business model to replace decreasing print ad revenue, but it is impracticable without industry-wide support. Though the Wall Street Journal has had success putting content behind a paywall7 and the New York Times launched on March 28, 20118 a paywall that charges for monthly access beyond a limited number of viewings, substantial impediments remain for newspapers without the professional audience of the Wall Street Journal or the market leadership of the New York Times. Most other major metros and local dailies seem to be paralyzed from charging for online content by a fear that readers will just shift to a free competitor.9 Any attempt by competitors to agree on standards for charging for online content would run afoul of Section 1 of the Sherman Antitrust Act.10 Thus, if the newspaper industry is going to be able to save itself by finding a subscription price point for online content that both consumers will pay and newspapers can survive on, it is going to need a statutory exemption permitting newspaper executives to collab- orate and devise an industry-wide model. Much of what has been written about antitrust exemptions for the newspaper business11 has focused on media mergers and the broad exemptions provided by the largely unpopular Newspaper Preservation
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